Contract and Consent: Representation and the Jury in Anglo-American Legal History

By J. R. Pole

In Contract and Consent, the renowned legal historian J. R. Pole posits that legal history has become highly specialized, while mainstream political and social historians frequently ignore cases that figure prominently in the legal literature. Pole makes a start at remedying the situation with a series of essays that reintegrate legal with political and social history. A central theme of the essays is the link between Anglo-American common law and contract law and American political and constitutional principles. Pole also emphasizes the political functions of legal institutions in English and American history, going so far as to suggest that we need to divest ourselves of any notion of the separation of powers. Instead, we need to acknowledge the historical role of courts, juries, and the common law as agencies of political representation and as promulgators of law and policy.

Other essays show the implications of independence for American law, and how American political scientists converted the concept of sovereignty from its authoritarian claims in the eighteenth century into a product of the political process in the nineteenth and twentieth centuries. Although the American colonies made their own versions of the common law,there was no simple division between "English" and "American" law. But it was of fundamental importance that an entitled, landed aristocracy was never imported into or allowed to take root in America, with the result that American law was much simpler than its English counterpart, with the latter's accretion of esoteric language and procedures.

Having established the basis of Anglo-American legal history in contract and common law in part one, in the second half of the volume Pole explores various constitutional and legal themes, from bicameralism in Britain and America and the role of the Constitution in the making of American nationality to the performance of representative institutions in the century following the American Revolution.

• Language: English
• Publisher: University of Virginia Press
• Release date: Feb 3, 2010
• ISBN: 9780813928920

Book preview

I

CONTRACT & CONSENT

Introduction

Reason and Custom

Time changes the face of things, origins become occluded, straight lines are bent, and in the words of W. H. Auden, … History to the defeated / May say Alas! but cannot help or pardon. History, however, keeps one or two tricks up its sleeve, including the advantage of being unpredictable. A case in point is that of Baker v. Carr, in which, in 1962, the Supreme Court of the United States, under the leadership of Chief Justice Earl Warren, took responsibility for reverting to the first principles of the Republic, an unpredicted turn that led to the most fundamental decisions of the Warren era. The case came up from the supreme court of Tennessee, whose state constitution required the legislature after each decennial census to maintain equality of representation by redrawing electoral district boundaries. Decades of neglect to fulfill this obligation had led to gross disparities of representation between diminishing populations in the rural areas and the increasingly crowded cities. The Supreme Court saw this neglect as a constitutional violation calling for a constitutional remedy. But before that, the Court had to decide whether the issue was justiciable, that is, whether it fell within the powers assigned to the judiciary.

There was no precedent for direct federal intervention in a state’s electoral system and the Court returned the case to the state judiciary. It was clear enough where this would lead. The Court was reclaiming the power to restore the original principle of the Constitution.¹ The state acted accordingly and direct federal intervention was averted.

Writing, however, had appeared on the wall. Only two years later, Reynolds v. Sims comprised a group which gave Warren, with an eight-to-one majority, the occasion for a direct announcement of constitutional principle. Legislators, he declared, represent people, not trees or acres; legislators are elected by voters, not farms or cities or economic interests. To the argument which had been made that certain interests deserved special consideration, he replied that it was inconceivable that a State law to the effect that, in counting votes for legislators, the votes for citizens in one part of the State would be multiplied by two, or five, or ten, while votes in another area would be counted only at face value, could be constitutionally sustainable.² Warren’s central argument was simple: as declared in Baker v. Carr, a constitutional violation required a constitutional remedy. That seemed clear enough. But Mr. Justice Frankfurter, joined by Justice Harlan in closely reasoned dissents, saw the problem through a more complex lens. The distribution of seats was a responsibility assigned to the legislature, not to the courts; by entering into questions of the design of electoral districts, Frankfurter argued, the Court would inevitably involve itself in partisan politics, in which it would be trapped by rival interests claiming to stand on rival interpretations of the Constitution. This insight proved to be prescient. That consideration, however, could not override the principle of political individualism on which Warren based the Court’s finding. Setting aside the specially safeguarded equal representation of the states in the Senate, the Constitution acted directly on persons as individuals, not as members of groups, and derived its authority from a contract to which free individuals were supposed to have agreed at the formation of political society.

A legally binding contract must reflect the mutual understanding and intentions of the parties at the time it was made. Generations of landed and commercial transactions had made the process familiar. The principle of political contract which lay at the foundations of American government rested on the same authority; the individual wills must, of course, give their consent voluntarily, free from coercion or deceit.

The Warren Court’s position thus derived from common ground with colonial Americans when they repudiated their allegiance to the king and followed by contracting to form a government of their own. But their commitment involved a paradox: when they stepped out of doors into the marketplace, town square, meetinghouse, or church, they took their part in collective, organically formed communities. But when they theorized about government, they perceived something different: a political society created contractually by the rational intent of independent individuals. In current psychological terms society in its political form was the creation of the human faculties of reason and will. For legal purposes the concept of will translated into intention. And the intention was to protect rights which already inhered by nature in every mature individual.

The town meeting of Concord, Massachusetts, explained the implications when it resolved on October 21, 1776: We conceive that a Constitution in its proper idea intends a system of principles established to secure the subject in the possession and enjoyment of their rights and privileges, against any encroachment of the governing part.³ In his brief but influential tract Thoughts on Government, John Adams approached the obligations of society on similar lines by distinguishing society from government; society, he explained, was from the nature of man, not from God. A curious distinction, since Adams would hardly have denied that the nature of man was from God; one had, however, to distinguish between man before and after the Fall, exonerating God from the natural consequences following from that unhappy event. The crucial point was that government was created by deliberate choice, which meant the aggregation of individual choices.⁴ The happiness of the individual, Adams declared, is the end of man. It must be the individual’s sense of his own condition that gave value to the efforts of society; the individual retained an unmistakable primacy of self-knowledge and self-interest. This distinctive emphasis on the individual—by which was generally meant the adult white male individual—was characteristic of the development of contractarian thought among Americans; the theme was a commonplace, repeated in innumerable tracts (though more so in secular tracts than in sermons). William Livingston, a governor of New Jersey, asserted that governments in these states are in fact nothing more than social compacts for the mutual advantage of the individuals of whom they are composed.⁵ The radicals who seized power in Pennsylvania in the spring of 1776 emphasized the protection and security of the community while recognizing that the community was composed of individuals. In Virginia a formulation written by George Mason and adopted by the general convention held in Williamsburg as early as May 6, 1776, declared that all men were by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact deprive or divest their posterity.⁶ In Massachusetts, after a draft constitution drawn up by the general assembly had been thrown out by the towns, and after a prolonged convention whose handiwork was circulated to and ratified by town meetings throughout the state, the Constitution of 1780 explained exactly how political society came into being. The body politic, it declared, is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen, and each with the whole people, that all shall be governed by certain laws for the common good.⁷ When George Washington, as president of the Philadelphia Convention, transmitted the text of the draft Constitution to the Congress, he warded off anticipated objections by reminding the states of the principle underlying self-government: individuals entering into society, must give up some share of liberty to preserve the rest.⁸

Universal assumptions about individual rights did not in themselves dictate the forms of the new Constitution, but they were wholly consistent with the logistics by which it would operate; Chief Justice Warren’s argument would have been understood on both sides. It was no comfort to Anti-Federalists that, under the Constitution, individuals would be equal in voting power. They understood that very well. Their crucial objection to the Constitution, as they charged over and over again, was the threat of consolidation of power. The independence of the states would be swallowed into the maw of the new federal government. They trusted the states more than the federal government for the protection of the rights which they held dear and whose sources lay deep in the layered complexities of the common law.

In the chapters that follow I have begun by attempting to establish a connection between the issues outlined above and the common law of contract as it emerged as a crucial though contentious issue in seventeenth-century England. This has necessarily involved some attention to the arcane processes, and not least the writ system through which the common law operated, a system which was more familiar to the general public in that period than legal technicalities are now. While these essays are self-contained and each is devoted to a separate theme, they are unified by a common interest in the ways in which public law and legal institutions contributed to the social process. This may not appear to be a startling proposition until we reflect that most mainstream history, while quite justifiably absorbed in politics and power, and preoccupied with standards and costs of living, with land and commerce, with religious passions and conflicts, with cities and populations, with war, diplomacy, and finance, and—more recently—with families, gender, and minority interests, and other familiar themes, most of the mainstream of historical writing has been singularly neglectful of the history of law.

The neglect is periodically interrupted when spectacular state trials—the trial of the Seven Bishops in England under James II, the prosecution for seditious libel of John Peter Zenger in New York in 1735, the sensational General Warrants cases in England in the 1760s—throw normal politics into disarray and impinge on the distribution of power. But the law then seems to sink below the surface of events to run its own course without explanation of decisions which would affect the outcomes of future cases; the narrative of political or economic life offers no explanation of the law’s own points of reference or criteria of judgment and why, therefore, the law could not be equated with the will or intentions of government—or, for that matter, of interests in the economy or the society which wanted the law to lean in their favor. That (for example) Lord Mansfield and his colleagues might, from the King’s Bench, have nudged the common law in ways which promoted economic development and capital formation, not to mention the economic independence of women, seems to be a somewhat neglected consideration.

Law was sanctified by custom, and customs differed from one community to another. But customs frequently had to be mediated by the courts, which, from the Middle Ages down to the emergence of parliamentary sovereignty in the seventeenth to eighteenth centuries, in effect became the authoritative sources of law. And by a perverse and paradoxical irony, after the Americans had established a complex republican government under the protection of a written constitution, armed with a bill of rights which incorporated but added new provisions to the old common law, the unelected Supreme Court, by exercising the negative power over legislation, developed virtually law-making powers of its own.

The issues discussed under this heading overlap with those of a chapter devoted to the Anglo-American jury, the ancient institution on which devolved much of the responsibility for local administration. Much more than parliaments or assemblies, the jury system (though sometimes cruelly abused) integrated people with their government. The jury has always been extolled as the most basic protector of popular liberties; it is a central thesis of this chapter that the jury (at its best), so far from being separate and distinct from formal politics, is historically an organ of public opinion and thus of political representation. Such was prominently the case in 1651 when the London jury acquitted the Leveller John Lilburne; such was the case in 1984 when a London jury acquitted the civil servant Clive Ponting, who was charged under the Official Secrets Act for leaking documents concerning the Falklands War. (He argued in defense that he had leaked them to a member of Parliament, and Parliament was sovereign). These deep continuities explain the emotions aroused by proposals to reform the jury system; but antiquity is not self-justifying, and in many important respects, as this chapter explains, the modern jury would hardly be recognized as the same institution if brought face-to-face with its medieval ancestor. Comparable disparities have come to characterize the English and American jury systems.⁹

The explanations and clarifications which I have attempted in these essays are far from resolving the numerous problems, some of them highly technical, which surround Anglo-American legal history. But in some justification of the labors that have been expended in the cause, a beginning will have been achieved if legal issues are restored to their rightful place in the mainstream and current of Anglo-American history.

1

Where the Law Comes From

The Courts and the Making of Society

I.      Law generates law, creating its own procedures, methods, unspoken assumptions which, taken as a whole, form a legal culture, in turn transfusing the political culture in which it grows. English and in time American legal cultures molded themselves primarily around variants of the common law, which Americans fashioned to reflect the needs of colonial cultures and their prevailing elites. Roman or civil law was occasionally cited in chancery courts, not so much as defining law, but rather as indicating legal principles. Lord Mansfield, who presided over the King’s Bench for most of the second half of the eighteenth century, took steps to introduce equity or civil principles into many of his judgments in commercial cases. He never liked the common law so much, he said, as when it was like equity.¹ In England, other fields included the law merchant, whose precepts got absorbed by the common law during the eighteenth century, and also, notably, ecclesiastical law, of which a residue still, at the time of writing, survives in the bench of bishops in the House of Lords. This arrangement, peculiar to the relationship of the Church of England to the state, could have no constitutional equivalent under the Constitution of the United States.

The courts of high commission were swept away early in the life of the Long Parliament. Before that upheaval, the common law had been swallowing the other and lesser jurisdictions. Ecclesiastical jurisprudence covered those areas of life, such as marriages, births, deaths, and burials, which were the province of the church. The common law itself was much influenced by the canon or civil law, so that the two couldn’t be easily disentangled; judges, law officers, and commentators, like the early seventeenth-century attorney general in Ireland Sir John Davies, who were steeped in civil law did not hesitate to borrow one from another.² At the foundations of the common law lay medieval commentaries such as those attributed to Bracton and Fleta, together with accumulations of casebooks, beginning with some three centuries of Year Books; but at its heart lay the idea of reason. The common law’s method used both, applying reason to case history, accumulating in the process an ever growing mound of precedent. Precedent (sometimes spelled president) was not in itself law. But it was evidence of law. It signaled directions even if it did not enforce conclusions. In the early seventeenth century, Sir Edward Coke, attorney general, chief justice, and later member of Parliament, injected his own brand of legal reasoning into the common law, well knowing that reason, which had always been in very high repute in the Western tradition of theology, and its cousin, philosophy, enjoyed exceptional prestige among the gifts of God to man. To understand the subsequent growth of the common law and at the same time to pursue its hold on the legal processes of England’s Anglophone colonies, we must reckon with the concept of reason in those earlier generations.

Reason, then, was more than logical procedure, the ability to argue that if A was A, then B must be B: it was the faculty of the mind which was responsible for moral understanding, and could therefore control the unreasoning passions. Reason was the faculty through whose operation men and women might know the difference between right and wrong; and reason also told them why right was right and wrong, wrong. A telling Shakespearian example is the extraordinary exchange between Prospero and Ariel which may be interpreted as the moral climax of The Tempest. Ariel, in obedience to his master’s commands, has rendered his enemies helpless, though conscious, and returns to report their abject condition; but then he touches Prospero with the affection of pity. Though understandably chagrined at receiving moral instruction from a spirit, Prospero relents: And with my nobler reason, ’gainst my fury / Do I take part.³ There were two distinct modes of thinking about reason, and both had political implications. For Shakespeare, reason was universal; and he was addressing audiences who understood it in that light. For his near contemporary Edward Coke, however, it was esoteric, almost cabalistic. Coke attributed to the common law a mode of reasoning that was cumulative, resulting from the application of human intellect to legal records and piles of casebooks assimilated through long years of study. It was also Coke who famously laid down that the common law could control acts of Parliament, a claim which—although there is little sign that it stood as a principle of English law—has often been held as a source for the American practice of judicial review. How, then, are we to understand Coke’s rhetorical strategy? He is, of course, excluding nonlawyers from the mysteries of English law; and in the immediate political context, the most prominent nonlawyer is the Scottish Stuart King James I. To accomplish this political aim Coke draws on the immense moral prestige of reason: the design is masterly, for he implies that for legal understanding, the process of reasoning, on which all the human race relies, is available only to men of specialized training reeking of midnight oil. If this was the reason which Coke elsewhere described as the life of the law (translating the old Latin tag Ratio est anima legis), it seemed bound to conflict with the common law’s other claim to authority, its respect for the customs of the ages.⁴ Custom, it was true, was supposed to rely on reason; an unreasonable custom was not law, as Chief Justice Cushing of Massachusetts would later observe (significantly, still in force after the transit of power from England to its former colonies), but it could hardly be maintained that all customs were inherently reasonable. Coke’s prestige did not protect his methods from his critics, notably Thomas Hobbes, who exposed these contradictions in his Dialogue between a Philosopher and a Student of the Common Laws of England.⁵

Law was doctrine vested in experience but untangled and brought to life by procedure. The practices of institutions will therefore form much of the subject matter with which this book is concerned. From the Middle Ages onward, individuals in their duties, obligations, and rights were, in Norma Landau’s felicitous phrase, imbricated by law.⁶ A lord or landowner held his own court, in which he heard the disputes, adjudicated the grievances of his tenants or villeins, and issued his commands. Everyone’s identity, including his or her obligations and expectations, was in a sense defined by law. In Ben Jonson’s cruel satirical comedy Volpone, the miserly master, the Fox, plays a malicious joke on his avaricious heirs expectant by changing places with his servant, Mosca, the Fly. But wearing Volpone’s robes, Mosca seeks to take advantage of him. When the fraud is exposed (in a ludicrous trial scene ridiculing evidence against witches), both are severely punished, but Mosca’s fate is the more severe because he has transgressed the bounds of his class in redefining his status, a maneuver subversive of society’s moral order.

Traditional social order and its associated system of authority were periodically disrupted by events such as the demographic disaster of the Black Death, by baronial or royal wars as in the contest between white and red roses, and so forth; but it tended to reassert itself, and only began to crumble with the advance of commerce, the growth of towns, and the increase of the money supply in the seventeenth century. Many traces remained, and some still remain, in titles indicative of nobility or even in the word landlord.

While different types of court presided over different spheres of jurisprudence, legal institutions of various sorts discharged many of the day-to-day offices of government, in addition to which the judges on circuit kept their ears open and acted as channels of communication to the central government. The role of the judiciary—and this is a keynote of the argument—was as much political as it was judicial, a distinction, indeed, which would not have been understood before the early seventeenth century. As we shall see, it was through complaints picked up by the visiting judges that the king’s government could detect evidence of local maladministration or of economic or social discontent; while most people relied far more heavily on the courts for a hearing of their problems and grievances than on the remote and occasional sittings of parliaments. The successes of early parliaments were arguably facilitated by the habits and sense of community formed by the more frequent and regular county hearings of the royal justices. In a familiar phrase, the quarter sessions were affectionately known as the parliaments of the shires, an expression reflecting in judicial institutions a consciously representative capacity which modern constitutional theory does not adequately reflect. Together, their functions unified the administrative, instructional, and disciplinary responsibilities of government.⁷ In their turn, the courts of Westminster did far more: periodically, as cases came before them, they took it into their hands to declare the legal principles on which the realm was founded.

Assisted, or hampered, by occasional interventions from Parliament, from the mid-fifteenth century the judiciary effectively controlled major areas in the development of English land law, than which nothing could be more fundamental to the character of the kingdom. Professor A. W. B. Simpson makes this point almost casually when in a discussion of the legal development of entails he refers to the judges’ nervousness about the monster they had created.⁸

Intervention by the courts to permit the conversion of an entail to fee simple seems to have been originated in Taltarum’s case in 1472, when a need for judicial action was perceived to arise from the development of perpetual entails under the statute De donis conditionalibus of 1285 (a statute involving land inheritance). This seems to have been the first occasion on which the judges resorted to a legal fiction, a device of their own invention which had the effect desired by many landlords of barring an entail. Professor David Konig has described this step as a judicial repeal of a parliamentary statute, which he sees as a challenge in a political struggle.⁹ As a result, landlords gained tax exemptions and the royal revenues suffered, while the courts had exercised an effective agency in national policy. It might, however, be more satisfactory to explain this case and its successors not as a clash between the judiciary and the legislature (to adopt American terminology), not as a conflict between institutions, but as a judicial modification of statute law in circumstances in which it was altogether more convenient for Parliament to leave the somewhat obscure technicalities to the courts. The involvement of the courts had other advantages. There might be no parliament sitting, and no one could know when or on what necessity a new parliament would be called. Judicial terms, by contrast, were formal, regular, and predictable, being at the same time independent of the sittings of parliaments.

The legal fiction sustaining the writ system was the pretense that an existing writ or form of words meant something which it had never yet been understood or intended to mean. By this invention the courts enabled themselves to amend the defects of the complex writ system itself, by which any sort of grievance or complaint had to be addressed through a particular writ appropriate to that question or plea; but more than that, as time went on, the courts empowered themselves to declare the law—and a declaration of the law, when the law was obscure or inapplicable to new circumstances, was indistinguishable from an act of lawmaking.¹⁰ It is a primary consideration that throughout the centuries which we are pleased to call the Middle Ages a substantial element of English law flowed from the courts rather than from Parliament.

The use or trust, by which an estate could be nominally transferred in trust into other hands while the original owner continued to enjoy the benefits of ownership and the estate avoided taxation on his death—this extraordinary invention, which kept countless properties intact, was a pure legal fiction (it was rediscovered and given a wholly new lease on life in the interests of Standard Oil, by John D. Rockefeller’s lawyers in 1879). After much loss of revenue, Henry VIII moved to suppress this practice by forcing an unwilling Parliament to pass the Statute of Uses (1536). One effect was the restoration of the crown’s common law rights to its great financial advantage; another was the institution of primogeniture. The Tudors, Henry VIII in particular, gave Parliament a great deal of work and thereby exalted its powers. Sir John Baker dates from these events the development of the distinction in lawmaking power between Parliament and the courts. This was a development of obvious potential significance. But it would be premature to diagnose a programmatic division of functions.

It was also by fictitious readings of conventional language that the courts enabled themselves to determine the character of an action and to make private issues public. Thus, when in another common fictitious device an injured party claimed that he (or she) had been assailed vi et armis—by force and arms, frequently a wholly fictitious complaint—or that property had been invaded, the effect was to allege a breach of the king’s peace, thus bringing the matter into the realm of public law; the crown, if it chose, could then prosecute. The process would be judicial, the outcome political.

As Hans Prawlisch has shown, England’s subjection of Ireland was accomplished in substantial measure through the agency of the courts applied through the instrumentality of the common law. Coke’s objectionable but extremely able contemporary Sir John Davies, who served first as solicitor general and then, from 1606 to 1619, as attorney general in Ireland, advanced this process not only by systematically entrenching the common law but also by admixing civil or Roman law, with which he seems to have been more deeply acquainted than Coke.¹¹

The English claim to Ireland rested on conquest. By contrast, England’s settlers in Massachusetts held a charter from the crown, but took the precaution of keeping possession of that instrument when they sailed for American shores. The first rulers of the colony knew nothing of the doctrine of the separation of powers which their revolutionary successors regarded as the indispensable safeguard of republican government: that transition was one of the hallmarks of a revolution in government. The powerful magistracy which dominated the early years until modified by some of the elements of representation exerted state-making powers as far-reaching as any exerted by the courts in England.

II.      The Founders’ intention to create their own commonwealth in their own way could not have been more clearly demonstrated than in the invention of the New England town. As a unit of local government the town was much larger than the English parish, but it would be impossible to read the town meeting records without being struck by the sense they convey of a community: our meetinghouse, our school, our highway, our town.¹²

In their first attempt to lay down fundamentals for the colony, the General Court in the Body of Liberties of 1641 disposed of the relics of feudal tenure and introduced an approximation to partible land inheritance; soon afterward, the court promoted an ambitious iron-manufacturing enterprise in the Hammersmith works, for which they tapped the most advanced technology available in Germany and imported experts from England. But the greatest investment went into shipbuilding, in which Boston soon rivaled the most productive centers in the English-speaking world. Shipbuilding called for and stimulated a wide variety of special skills and promoted what later economists would call the multiplier effect. Cod fishing and whaling were internationally important activities; by mid-century New England was already becoming a maritime force in the English as well as the colonial economy. Numerous local economic enterprises were stimulated and capitalized, the towns taking responsibility for subsidizing sawmills, grist mills, and similar developments; and when Oliver Cromwell came to power in England, Massachusetts declared itself a republic—a view of its status not shared by its coreligionists in England.¹³

The common law as its seed took root in American soil had many curious and esoteric features and shared with England its most benign characteristic—its preference for liberty. In principle, this yearning to make of the very concept of law an instrument and agency of personal freedom was also England’s most valuable but most controversial legacy to its colonies, on which they drew when asserting their own rights and liberties against British domination. American law, however, diverged from its English ancestry in the matter of personal freedom when the issue was slavery, and particularly slavery based on what was later called race, and then, unable to resolve the tension, split apart within itself.

Virginia took a major step in the Americanization—or, we may say, nativization—of English law when, in 1705, the legislature (at that time dominated by the council) determined that property in slaves was to be of the same legal status as land, and could therefore be transmitted by inheritance.¹⁴ Although slavery existed without, as yet, legal challenge in England, no such statute was introduced in England, nor would the common law have condoned such practice if challenged. In America, on the other hand, the southern colonies accommodated law to the dictates of a slaveholding and class-structured social order, maintained by primogeniture—which by the time of the Revolution, many planters were willing to assist Jefferson in dismantling. In marked contrast, New England preferred small properties and, after the elder son had received a double portion, partible inheritance, administered through the courts. It is a mistake to regard legal systems as dividing simply between England and the colonies. The differences between the northeast of the Continental colonies and those of the Chesapeake and southward were at least as great as between either and the domestic jurisprudence of England, and should be approached in their own historical contexts.

That the law leaned in favor of liberty was a dictum of Bracton’s which did not necessarily travel abroad, but which English courts proclaimed to declare the liberty of countless villeins.¹⁵ Villenage had declined steeply during the reign of Elizabeth I, and by the latter sixteenth century personal freedom had become the normal English status.¹⁶ It was the same principle at work in the early formulation of codified—or, to use modern language, constitutional—law in Massachusetts, as contained in the Body of Liberties, reduced to writing (but